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The Supreme Court’s division in R. v. D.B. 2008 SCC 25 epitomizes the decades-long scholarly debate on the appropriate limits of judicial policy-making. On its face, R. v. D.B. is about the different ways in which young offenders can be treated compared to adults, the real-world effects of an overly punitive criminal justice system, and the psychological problems caused by publication bans. But, at its core, the division between the majority judgment and the dissent is one that lies at the very centre of the debate surrounding the Charter and judicial activism: the amount of deference the judiciary should accord to Parliament with issues surrounding public policy.
In a 5-4 decision, the Supreme Court of Canada struck down the elements of the Youth Criminal Justice Act S.C. 2002, c.1 (YCJA) that presume offenders charged with violent crimes over the age of 14 be treated as adults. Much has already been written about the majority judgment (see Stribopoulos post). Here, I will focus on the dissent, particularly in relation to the differing opinions on the principles of fundamental justice.
The four dissenting justices agreed with the majority on two principles of fundamental justice, for the purposes of s. 7: that young offenders, because of their diminished moral culpability, should be treated differently than adult defenders; and that the Crown has the burden of providing aggravating sentence factors beyond a reasonable doubt. It was with respect to the interpretation and application of these principles, however, where the sharp philosophical divide in the Court was clearest.
Noting that the Crown conceded the reverse onus provision engaged s. 7, the majority held that the presumption of adult culpability for youths charged with violent crimes violated these principles of fundamental justice, and could not be saved under s. 1. However, as an important qualifier, Abella J. noted, “This does not mean that an adult sentence cannot be imposed on a young person. It may well be that the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age.”
In dissent, Rothstein J. claimed the scheme did not violate the presumption of diminished moral culpability. Although Rothstein accepted that the presumption of reduced moral blameworthiness of young persons was a principle of fundamental justice, he questioned whether “a further presumption of youth sentences for young offenders necessarily follows.” He concluded that although Abella J. did not explicitly state that such a principle exists, the logic of her argument dictated that it was so. For Rothstein, the YCJA complied with the principles of fundamental justice insofar as it recognized the age, reduced maturity and vulnerability of young persons. Further, a host of provisions in the sentencing procedures meant the second principle of fundamental justice (the Crown has the burden of providing aggravating sentence factors) was also met.
Because the sentencing provisions did not constitute a clear violation of a principle of fundamental justice, the effect of the dissenting judgment would be to defer to Parliament in what was (and will remain) a convoluted and tricky policy area. Rothstein held that in drafting the law, Parliament had balanced two competing interests: to ensure that young persons have their reduced moral blameworthiness taken into account, and to ensure that society has confidence that the youth justice system guarantees the accountability of violent young offenders. This balancing represented “a legitimate exercise of Parliament’s authority to determine how best to penalize particular criminal activity, a power this Court has recognized as broad and discretionary.”
To better understand this case, it is important to look at the “presumption of reduced moral blameworthiness” as comprising a continuum. At one end, the young offender is always treated (and sentenced) differently from adults, regardless of the facts of the case. At the other end, this presumption of reduced moral blameworthiness is entirely absent – young offenders, like adult offenders, are offered no special treatment. Parliament’s scheme under the YCJA clearly offered a compromise between these two extremes. The Act provided many opportunities for youth to be tried differently than adults, and even included modified adult penalties for convicted youths.
Moreover, neither Justices Abella nor Rothstein favored an extreme position with respect to the principle, allowing for flexibility: Justice Abella held that reduced moral blameworthiness necessitated a presumption of youth sentences, but she allowed for youth to be tried as adults in certain circumstances. Justice Rothstein held that Parliament’s scheme was entirely consistent with the principle of diminished moral blameworthiness, and that an appropriate balance had already been struck. What the majority opinion effectively did was replace one “compromise position” (Parliament’s) with another – slightly tinkering with the law, all the while allowing Parliament to treat the young offender as an adult in certain situations.
And here is why major media outlets and “court bashers” have had (and will have) issues with the decision. The case does not deal with the denial of a clear-cut right, or even a clear-cut principle of fundamental justice. Both the majority and the dissent recognized the principles of diminished moral blameworthiness and the Crown’s burden of providing aggravating factors on sentencing beyond a reasonable doubt. Both sides recognized Parliament’s balancing role, and argued for a compromise policy. Justice Rothstein felt Parliament’s compromise was fair and reasoned. Justice Abella felt she could get the balance a little better, and struck down the provision. The majority decision represents more of what Court critics call “judicial second-guessing” than fundamental rights protection.
Critics claim these types of policy decisions – those dealing with grey areas, rather than clear violations of rights – should be left to the elected representatives, who can be held accountable. For supporters of this decision to concede that the majority judged its ruling primarily on policy considerations but support it because they “got it right” is potentially troubling. Those satisfied with the outcome in R. v. D.B. but wary of a soon-to-be-Conservative-appointed judiciary running amok should take pause to consider the implications of entrusting the Supreme Court with the right to alter delicate compromise legislation based on a policy whim. In future years, similar 5-4 decisions could easily tilt the other way. One thing we can be sure about is that this decision will continue the scholarly debate regarding the appropriate limits of judicial intervention.
3 Comments
"The majority decision represents more of what Court critics call 'judicial second-guessing' than fundamental rights protection."
I'm not so sure about this. For my part, while I appreciate the dissent's argument, I honestly think they erred in principle. While Rothstein J. highlights that the Act takes into account the presumption of reduced moral blameworthiness of youths, I think he overlooks the crux of the matter: the presumption in favour of adult sentences for certain violent offences has little or nothing to do with the actual moral blameworthiness of an individual accused. That is, an adult sentence is presumed to be appropriate based on the nature of the offense rather than the actual blameworthiness of the individual in question. While the Act seeks to account for a youth's (presumed) reduced moral blameworthiness in other ways, I don't think that can make up for the fact that the reverse onus blatantly ignores any question of whether the individual actually has a reduced level of blameworthiness compared to an adult. The fact that the crime is violent is taken to mean that he or she is not worthy of less blame, and that is, frankly, not sensible. It does not logically follow that a youth who commits a robbery, all other things being equal, is any more blameworthy than a youth who commits a theft. It is the character of the youth that has to determine whether he or she is more or less blameworthy, no?
It seems to me that this where the dissent's argument misses the mark and, thus, the majority is correct in principle, not just in policy.
As an aside, is "reduced moral blameworthiness" possibly the most cumbersome phrase ever invented?
I certainly take your point. Here I think is the difficulty of applying a principle (reduced moral blameworthiness) to an entire policy determining all sorts of sentences for all sorts of crimes, for youths of various ages.
It's easy to take out each aspect of the sentencing procedure and look at whether, on its merits and removed from everything else in the Act, it conforms with the principle. But I think that misses the point, for two reasons: 1) By disassociating one particular element of the scheme from the others, we're missing whether the whole scheme comports with the principle, and 2) there is also no focus on the societal interests involved (public safety and the accountability of young offenders), which are very important to the YCJA. As Rothstein said (after quoting previous judgments such as Malmo-Devine):
"When defining the boundaries of the presumption of reduced moral
blameworthiness of young persons, consideration must be afforded to societal interests such as public safety and accountability of young offenders who commit the most serious violent offences.... Only by affording consideration to important societal interests, such as public safety and accountability of young offenders, can the presumption of reduced moral blameworthiness of young persons be properly defined."
Reduced moral blameworthiness, as cumbersome as it sounds, needs to be looked at in terms of the whole scheme. If the reverse onus provision existed independently of any other considerations of reduced balmeworthiness, should it be struck down? Probably. But I would point you to Justice Rothstein's list of 9 different ways in which the YCJA does presume reduced moral blameworthiness (para. 149). Read together with these nine different elements, the scheme certainly provides for reduced moral blameworthiness. I think Justice Abella ignored this consideration, and in so doing, ignored the societal interests involved in s. 7 PFJ consideration.
Does the fact that the crime is violent mean the individual is more blameworthy than if the same individual committed a non-violent crime? Perhaps not. Nevertheless, insofar as protecting society from violent offenders was a goal of the legislation, I think the reverse onus for violent crimes was a justifiable inclusion, particularly when read in concert with the above 9 provisions. Principles, like policies, are multi-faceted and have some flexibility.
What I find most problematic about Rothstein J.'s dissent is not that he awarded attention to the fact that Parliament engaged in a legitimate 'balancing act' but rather that he considered such balancing in the context of a s. 7 Charter analysis. Section 1 ought to be the only appropriate venue for a discussion of this sort.
While it can certainly be said that the "except in accordance with the principles of fundamental justice" clause of s. 7 effectively imports a s. 1-style analysis into s. 7 of the Charter, allowing a good-faith attempt on the part of Parliament to balance competing legislative objectives to figure into a s. 7 analysis arguably dampens the extent of s. 7's protection.